Two esoteric opinions flagged today -- in the first, the Ninth Circuit granted a new trial to a California death-row prisoner; in the second, the court granted relief from a removal order that was based on a state-court criminal conviction.
1. Burton v. Davis, No. 13-55328 (Bybee with Rawlinson; dissent by O'Scannlain) --- In this pre-AEDPA case, the Ninth Circuit affirmed the grant of habeas relief to a California death-row prisoner on the ground that the state courts improperly denied him his right to represent himself, as guaranteed by Faretta v. California, 422 U.S. 806 (1975). In reaching this conclusion, the court held that it was not bound under the pre-AEDPA version of 28 U.S.C. § 2254(d) by factual findings made in a state habeas evidentiary hearing that was expressly limited by order of the California Supreme Court to considering a separate and distinct claim.
The petitioner was charged with robbery and murder, and the state sought the death penalty. Defense counsel (ironically named Slick) hired an investigator, who interviewed the petitioner and learned that counsel had never met with the petitioner while he was in the jail before trial. The investigator consulted with another attorney, who advised the petitioner that he could ask to represent himself under Faretta if he was upset with counsel's handling of the case. And the petitioner had reason to be concerned, because it turned out that counsel allowed the petitioner's trial to begin without consulting with his hired investigator, who had continued to investigate the case while the trial was underway. Twice before trial and twice during trial, the petitioner asked to fire his appointed counsel and represent himself because the investigation was incomplete. The trial judge rebuffed these requests because he wanted to get the trial out of the way, and the petitioner had represented that he was not ready for trial.
Slick conducted little cross-examination of the state's witnesses, and presented no witnesses on the petitioner's behalf. The jury convicted the petitioner after hearing two days of testimony. The penalty phase lasted one day, and the jury returned a death verdict. The California Supreme Court affirmed the conviction on direct appeal, concluding that it did not need to file the Ninth Circuit's rule that a judge must grant a pretrial Faretta request unless it is shown that the request is made for the purpose of delay. In 1992, the petitioner filed his federal habeas petition, which was stayed pending the conclusion of state habeas proceedings.
State habeas proceedings took 16 years to resolve. This was largely because the California Supreme Court ordered a hearing on the petitioner's claim under People v. Frierson, 705 P.2d 396 (Cal. 1985), that the petitioner was denied his right to put on a defense at the guilt phase of the trial. The California Supreme Court asked for answers to 11 factual questions, including a question relating to the petitioner's purpose in seeking to represent himself and a question relating to Slick's understanding of the petitioner's reasons for wanting to represent himself. After a 14-day evidentiary hearing, a superior court judge ruled against the petitioner, and the California Supreme Court affirmed. See In re Burton, 147 P.3d 1014 (Cal. 2006).
Federal habeas proceedings then resumed, and the district court called for briefing on the petitioner's Faretta claim. The state conceded that the district court was bound to follow Ninth Circuit law on the issue, but urged the court to deny the claim because the California state courts had found that the petitioner's reasons for wanting to represent himself were dilatory. The district court disagreed, granted the writ and ordered the petitioner to be released or retried, and stayed that order pending appeal.
The Ninth Circuit agreed with the district court that the California Supreme Court's rejection of the claim was incorrect under Ninth Circuit precedent. Indeed, while the petitioner's case was pending on direct appeal, the Ninth Circuit had granted habeas relief to another California state prisoner on the ground that he had made a pretrial Faretta request that was not shown to be dilatory, and the state courts had not honored the request. Because the state courts had similarly rebuffed the petitioner's Faretta request in this case, they had misapplied the governing constitutional law.
The court then turned to the question about how to handle the factual findings made by the California state courts in the state habeas hearing. Based on Ninth Circuit precedent, the court concluded that the question whether the defendant's purpose in seeking to represent himself was dilatory was a question of fact. Because the question in Frierson was whether there was a conflict between the defendant and his counsel regarding the presentation of a defense, the Ninth Circuit concluded that the factual findings made at the state habeas hearing could not have answered the factual question about the purpose of the petitioner's Faretta request. Accordingly, the petitioner did not have a full, fair, and adequate hearing in state courts on his Faretta claim, 28 U.S.C. § 2254(d)(2), (6) (1994), and so no deference to the state habeas factual findings was required. The district court correctly found that the petitioner's Faretta pretrial request was not for purpose of delay, and thus correctly granted relief.
Judge O'Scannlain would have deferred to the state habeas factual findings, because he believed that there was enough overlap between the Frierson questions and the Faretta questions.
Note that the opinion in this case issued over a year and a half after oral argument.
The decision is here:
2. Rivera v. Lynch, No. 12-72668 (Paez with Fletcher and Berzon) --- The Ninth Circuit granted a petition for review of a decision of the Board of Immigration Appeals, holding that California's perjury statute was divisible under Descamps v. United States, 133 S. Ct. 2276 (2013), and that written perjury in violation of Cal. Penal Code § 118 was not a crime involving moral turpitude.
The decision is here: